March 06, 2019
Court Denies Louisiana Appraisers Board Petition for Review
The United States Court of Appeals for the 5th Circuit dismissed on Feb. 28 the Louisiana Real Estate Appraisers Board’s petition for review of a Federal Trade Commission decision that disallowed the LREAB from asserting its state-action immunity defense in ongoing administrative proceedings. The court ruled that it did not have jurisdiction to consider the petition.
A stay of action by the FTC has been in place pending the outcome of the review petition.
In dismissing the petition, the court noted that the Federal Trade Commission Act only allows it to review cease and desist orders issued by the FTC, stating, “The Commission’s order denying the Board’s motion to dismiss and granting the FTC’s motion for partial summary decision is not a cease and desist order, [so] the statute does not expressly authorize us to exercise jurisdiction here.”
The LREAB had argued that the court did have jurisdiction to hear the matter under the “collateral order doctrine” established by the Supreme Court in the case of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). In that case, it was determined that the jurisdiction of the courts of appeals extends beyond final orders of district courts and administrative agencies to a “small class [of decisions] which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.”
The LREAB argued that the Fifth Circuit had jurisdiction under the collateral-order doctrine because its state-action immunity defense was so essential to its case that the FTC’s dismissal warranted judicial review rather than deferral until the final adjudication of the administrative action.
The court rejected the LREAB’s “collateral-order doctrine” argument, deferring instead to the plain language of the provision in the FTCA that limits its review to cease and desist orders, stating, “Although courts of appeals have found the collateral-order doctrine to apply to some administrative proceedings, the cases do not prove that the collateral-order doctrine will necessarily apply to every administrative proceeding.”
The court explained that “Cohen’s reasoning cannot be used to stretch the limitations of the FTCA, in which Congress authorized us to hear appeals only from the Commission’s cease and desist orders.”